People v. Vara

2016 IL App (2d) 140848
No. 2-14-0848
Opinion filed December 21, 2016
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Stephenson County.
)
Plaintiff-Appellee, )
)
v. ) No. 13-CF-73
)
RICARDO VARA, ) Honorable
) Michael P. Bald,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________

JUSTICE SPENCE delivered the judgment of the court, with opinion.
Justices Burke and Birkett concurred in the judgment and opinion.

OPINION

¶1 We once again are presented with a case in which the circuit clerk imposed certain

mandatory statutory fines, despite lacking the power to do so, and the trial court did not, despite

having both the power and the obligation to act. The parties agree that the clerk lacked the

authority to impose the fines and that the purported fines must be vacated. They disagree on

what other relief this court may provide at this time. The State requests that we impose the fines

ourselves or remand with directions for the trial court to do so. Defendant, Ricardo Vara,

disagrees. We agree with defendant that, in light of People v. Castleberry, 2015 IL 116916, the

purported fines must be vacated and we may not provide any further relief, either by imposing
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the fines or by ordering the trial court to do so. If the State wishes to hold the trial court to its

statutory obligation, it must pursue relief in a new proceeding.

¶2 After a bench trial, defendant was convicted of child pornography (720 ILCS 5/11-

20.1(a)(6) (West 2012)) and sentenced to three years in prison. At the August 4, 2014,

sentencing, the trial court imposed the following fines: (1) a $1000 fine; (2) a mandatory $500

sex-offender fine (see 730 ILCS 5/5-9-1.15(a) (West 2014)); (3) a mandatory $30 “[a]dditional

fine to fund expungement of juvenile records” (730 ILCS 5/5-9-1.17(a) (West 2014)); and (4) a

mandatory $500 “[a]dditional child pornography fine[]” (730 ILCS 5/5-9-1.14 (West 2014)).

The propriety of these fines is undisputed. Defendant timely filed a notice of appeal on August

22, 2014.

¶3 The assessments that are at issue are listed in a document entitled “Payment Status

Information” (Payment Schedule), dated April 12, 2016, approximately 18 months after the

written final judgment. The Payment Schedule is signed by a deputy circuit clerk, on behalf of

the circuit clerk. It lists the following pertinent assessments (all shown as unpaid): (1) “Court”

($50); (2) “Youth Diversion” ($5); (3) “Violent Crime” ($100); (4) “Lump Sum Surcharge”

($250); (5) “Sexual Assault” ($200); (6) “Sex Offender Regis” ($500); (7) “Medical Costs”

($10); (8) “State Police Ops” ($15); (9) “Child Pornography” ($495); and (10) “Clerk Op

Deduction” ($5).

¶4 In this direct appeal, defendant does not challenge assessment (6), the $500 sex-offender-

registration charge, or assessments (9) and (10), the $500 child-pornography fine, $5 of which

must be deposited into a statutory fund (see id.). Defendant notes that the trial court duly

imposed these assessments. He contends, however, that the remaining assessments are void

because they are fines and thus the clerk lacked the authority to levy them.

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¶5 Defendant concedes that all of these assessments were not only authorized by statute but

mandatory. Specifically, assessment (1) (“Court”) was required by a county ordinance or

resolution passed under section 5-1101(c)(1) of the Counties Code (55 ILCS 5/5-1101(c)(1)

(West 2014)). Assessment (2) (“Youth Diversion”) was required by county action under section

5-1101(e)(2) of the Counties Code (55 ILCS 5/5-1101(e)(2) (West 2014)). 1 Assessment (3)

(“Violent Crime”) was required by section 10(b)(1) of the Violent Crime Victims Assistance Act

(725 ILCS 240/10(b)(1) (West 2014)). Assessment 4 (“Lump Sum Surcharge”) was required by

section 5-9-1(c) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-9-1(c) (West

2014)). Assessment 5 (“Sexual Assault”) was required by section 5-9-1.7(b)(1) of the Unified

Code (730 ILCS 5/5-9-1.7(b)(1) (West 2014)). Assessment (7) (“Medical Costs”) was required

by section 17 of the County Jail Act (730 ILCS 125/17 (West 2014)). Assessment (8) (“State

Police Ops”) was required by section 27.3a of the Clerks of Courts Act (705 ILCS 105/27.3a

(West 2014)). Defendant’s sole contention is that the assessments are void because the clerk

levied them without any authority. He requests that we vacate these illegal fines.

¶6 The State concedes that the assessments are void, but it disagrees with defendant on the

proper remedy. The State requests that we either impose the fines ourselves or remand with

directions for the trial court to do so. Defendant acknowledges that what the State requests was

formerly the accepted remedy in a case such as this one. But he argues that this relief was

premised on the rule, abolished by Castleberry, that a sentence that does not conform to statutory

requirements is void and may be challenged at any time. Defendant reasons that, after

Castleberry, the trial court’s nonimposition of the fines was mere trial-court error (albeit plain

1
The record does not disclose that the county has enacted an ordinance or resolution that

requires either assessment (1) or assessment (2), but defendant does not contest that it has.

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error) and that his appeal does not empower us to grant the State relief against the judgment. For

the reasons that follow, we agree with defendant.

¶7 First, some general principles. Because this appeal presents pure questions of law about

the propriety of the fines involved, our review is de novo. See People v. Marshall, 242 Ill. 2d

285, 292 (2011). Also, defendant has not forfeited his claim of error by failing to raise it in the

trial court, as the erroneous imposition of a fine or a fee is cognizable as plain error. See People

v. Lewis, 234 Ill. 2d 32, 47-49 (2009).

¶8 We agree with the parties that the assessments at issue were fines, which the circuit clerk

could not impose. A fine is a pecuniary punishment for an offense. People v. Wisotzke, 204 Ill.

App. 3d 44, 50 (1990). Fines must be imposed by the trial court as part of the defendant’s

sentence. People v. Chester, 2014 IL App (4th) 120564, ¶ 33. The circuit clerk may not impose

fines. People v. Johnson, 2015 IL App (3d) 140364, ¶ 10; Chester, 2014 IL App (4th) 120564,

¶ 33. This is because the imposition of a fine is a judicial function beyond the authority of the

clerk. Wisotzke, 204 Ill. App. 3d at 50.

¶9 Although the clerk may impose fees, which are not punitive (see People v. Wade, 2013 IL

App (3d) 150417, ¶ 15), all of the assessments at issue were not fees but fines. See People v.

Smith, 2013 IL App (2d) 120691, ¶ 18 (assessment 1 (“Court) and assessment 2 (“Youth

Diversion”)); People v. Reed, 160 Ill. App. 3d 606, 612 (1987) (assessment 3 (“Violent

Crime”)); People v. Williams, 2013 IL App (4th) 120313, ¶ 18 (assessment 4 (“Lump Sum

Surcharge”)); 730 ILCS 5/5-9-1.7(b)(1) (West 2014) (assessment 5 (“Sexual Assault”)); People

v. Larue, 2014 IL App (4th) 120595, ¶ 57 (assessment 7 (“Medical Costs”)); People v. Millsap,

2012 IL App (4th) 110668, ¶ 31 (assessment 8 (“State Police Ops”)).

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¶ 10 The parties agree that the foregoing fines cannot stand and must be vacated. They

disagree on what more, if anything, this court can or ought to do. The State requests that we

either impose the fines ourselves or remand with directions for the trial court to do so. The State

correctly notes that, before Castleberry, this was the standard and accepted remedy. See, e.g.,

People v. Higgins, 2014 IL App (2d) 120888, ¶¶ 24, 33 (remand with directions to impose fines);

Chester, 2014 IL App (4th) 120564, ¶ 37 (remand with directions to impose fines); People v.

Evangelista, 393 Ill. App. 3d 395, 401 (2009) (direct imposition of fines). The State further

correctly notes that, even after Castleberry, courts have held that, on a defendant’s direct appeal,

the court of review has the power to impose the fines or to order the trial court to do so. See

People v. Warren, 2016 IL App (4th) 120721-B, ¶ 89; People v. Ford, 2016 IL App (3d) 130650,

¶ 35.

¶ 11 Defendant contends that, whatever the practice before Castleberry, that opinion, while

not disturbing our authority to declare the clerk’s unauthorized acts void, now bars us from either

imposing the fines ourselves or ordering the trial court to do so. He reasons that Castleberry

abrogated the basis for our authority to increase a defendant’s punishment beyond what the trial

court imposed. By abolishing the rule that an illegally low sentence is void, it prevented an

appellate court from invoking its power to correct a void judgment at any time that a case is

properly before it (see People v. Flowers, 208 Ill. 2d 291, 308 (2003)). Thus, defendant

concludes, the mere fact that the appellate court has jurisdiction over a defendant’s appeal does

not enable it to grant the State relief by correcting, or ordering the correction of, an illegally low

sentence. Defendant urges us to reject the post-Castleberry authority to the contrary in favor of

Wade, which held that the State can obtain relief only by filing a new action.

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¶ 12 To explain why we agree with defendant, we discuss Castleberry and the conflicting

authority that it has spawned. Before Castleberry, the law was that a sentence that does not

conform to a statutory requirement is not merely voidable but void. See People v. Arna, 168 Ill.

2d 107, 113 (1995). However, the Castleberry court began its opinion by explicitly abolishing

that rule. Castleberry, 2015 IL 116916, ¶ 1. The court then explained why.

¶ 13 The Castleberry defendant had been convicted of two counts of aggravated criminal

sexual assault, based on two separate acts. At sentencing, the State argued that each conviction

was subject to a mandatory add-on of 15 years under a statute that applied whenever a defendant

had committed certain offenses while armed with a firearm. Id. ¶ 3. The trial court held that the

add-on, though mandatory, applied only once under the circumstances; accordingly, after

sentencing the defendant to two consecutive 9-year terms, it added 15 years to only one term, for

a total of 33 years’ imprisonment. Id. ¶ 4. On the defendant’s appeal, the appellate court

rejected his claims of error (id. ¶ 5), but it agreed with the State that the trial court had erred in

applying the 15-year add-on to only one sentence, as the pertinent statute had required that each

sentence be so enhanced (id.). In accordance with Arna, the appellate court held that, because

the sentence violated a statutory requirement, it was void. Id. ¶ 6. It remanded the cause for

resentencing.

¶ 14 The defendant appealed to the supreme court. Id. ¶ 7. He argued that the appellate court

erred insofar as it held that his sentence was void, as opposed to merely erroneous, to the extent

that it omitted the required add-on. Id. ¶ 9. This was because Arna was not valid. Id. He

contended further that, without the “void[-]sentence rule,” the appellate court did not have the

authority to consider the State’s request to increase his sentence. Id. ¶ 10. The supreme court

agreed with the defendant in each respect.

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¶ 15 The court first rejected the Arna rule as inconsistent with the principle that “ ‘[w]hether a

judgment is void or voidable presents a question of jurisdiction.’ ” Id. ¶ 11 (quoting People v.

Davis, 156 Ill. 2d 149, 155 (1993)). Essentially, if jurisdiction was lacking when the judgment

was entered, then it is void; but, if jurisdiction existed, the judgment is merely voidable. Id.; see

Davis, 156 Ill. 2d at 155-56. And a court has jurisdiction as long as it has both the power to hear

the general class of cases to which the proceeding in question belongs (subject-matter

jurisdiction) and the power to bring a person into its adjudicative process (personal jurisdiction).

Castleberry, 2015 IL 116916, ¶ 12. Arna transgressed this limitation on the voidness doctrine by

holding that a judgment can be void even if the trial court that entered it had both subject-matter

jurisdiction and personal jurisdiction at the time. Id. ¶ 13.

¶ 16 The Castleberry court thus rejected the premise of Arna, reasoning that, in general,

because jurisdiction is conferred on the trial court solely by our state constitution, a statutory

requirement cannot be jurisdictional. Id. ¶ 15; see Belleville Toyota, Inc. v. Toyota Motor Sales,

U.S.A., Inc., 199 Ill. 2d 325, 335-37 (2002). And, because a nonjurisdictional defect cannot

render a judgment void, the trial court’s failure to impose the mandatory second add-on did not

render the defendant’s sentence void, even in part. Castleberry, 2015 IL 116916, ¶ 15. Indeed,

the parties agreed that the void-sentence rule was not valid. Id. ¶ 17.

¶ 17 In Castleberry—as here—the parties disagreed on what, if anything, the appellate court

could do to remedy the nonjurisdictional defect of an illegally low sentence. The State

contended that the appellate court had properly granted its request to increase the defendant’s

sentence. The supreme court disagreed. Id. ¶ 20. The court explained that Illinois Supreme

Court Rule 604(a) (eff. July 1, 2006), which specifies when the State may appeal in a criminal

case, does not permit appeals from sentencing orders. Castleberry, 2015 IL 116916, ¶ 21.

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Although the appellate court could consider any State argument in support of the judgment from

which the defendant had appealed, it could not grant the State relief against the judgment. Id.

¶ 22. To do so would effectively allow the State to file a cross-appeal from the judgment by

seeking relief adverse to the defendant. Id. ¶ 23. Because neither Rule 604(a) nor any other

supreme court rule allowed such a cross-appeal, the appellate court did not have the authority to

grant the State’s request to modify the sentencing order. Id. ¶ 26.

¶ 18 The supreme court did not hold that the State is always without recourse against an

illegally low sentence. In “appropriate circumstances,” it explained, the State can file a

mandamus action to require the trial court to follow the statutory requirement. Id. ¶¶ 26-27. In

Castleberry, the State had neither filed such an action nor urged the supreme court to depart from

its rules or amend them in the course of deciding the case. Id. ¶¶ 27-29. Thus, the court reversed

the appellate court’s judgment, negating that court’s attempt to enforce the statutory requirement

on the defendant’s direct appeal. The court simply affirmed the trial court’s judgment. Id. ¶ 31.

¶ 19 The effect of the supreme court’s decision was to leave the illegally low sentence in

place. The court recognized that the sentence violated a statutory requirement, but it recognized

as well that, because the illegality made the judgment merely voidable and not void, it was not

subject to the rule that a void order may be attacked at any time as long as the case is properly in

court. The illegality could still be challenged—but not on the defendant’s direct appeal from the

judgment. Thus, the court granted the State no relief against the admitted trial-court error.

¶ 20 Defendant argues that Castleberry controls our options in this case. He notes that, not

only did the circuit clerk purportedly impose various fines without the authority to do so, but the

trial court failed to impose these fines despite its obligation to do so. Defendant reasons that we

can vacate the clerk’s unauthorized actions, because he has requested this relief in his direct

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appeal, over which we undoubtedly have jurisdiction. He concludes, however, that, just as the

appellate court in Castleberry lacked the authority to grant the State relief against the trial

court’s failure to follow the add-on statute, so we may not grant the State relief against the trial

court’s failure to follow the statutes that required imposing the specified fines. In other words,

he maintains, we may not subject him to what would really be new penalties—the clerk’s

purported imposition of these penalties having been merely an imposition on the trial court’s

exclusive authority, and therefore a legal nullity.

¶ 21 Defendant’s position finds persuasive support in Wade. There, the defendant pleaded

guilty to retail theft and was sentenced to 5½ years’ imprisonment. The trial court imposed no

fines. Wade, 2016 IL App (3d) 150417, ¶ 3. The circuit clerk’s office, however, filed a

document essentially similar to the Payment Schedule in this case, purporting to impose a variety

of assessments, some of which were fines and thus beyond the clerk’s authority to order. Id.

¶¶ 5, 14. On appeal, the defendant contended that these fines were void. The appellate court

agreed. The court explained that, after Castleberry, the fines could not be void merely because

they failed to comply with a statutory requirement—but they were void nonetheless, because the

circuit clerk had imposed them and that officer had no authority to do so. Id. ¶ 12. The court

reasoned that Castleberry did not disturb the long-standing rule that fines purportedly levied by

the clerk are void from their inception because, as a nonjudicial officer, the clerk lacks the

authority to enter a penalty in a criminal case. Id. ¶¶ 10, 12; see People v. Hible, 2016 IL App

(4th) 131096, ¶ 11; see also Ill. Const. 1970, art. VI, § 18 (explicitly describing circuit clerk as

nonjudicial officer); Hall v. Marks, 34 Ill. 358, 363 (1864) (clerk is not a judicial officer but only

a ministerial officer of the court).

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¶ 22 The Wade court next considered the effect of its initial holding. The circuit clerk had

purported to impose various fines but had lacked the authority to do so. The trial court did have

the authority to impose these fines but had not done so. Thus, in legal effect, the fines had not

been imposed at all. Yet they were mandatory. Therefore, the trial court had imposed an

illegally low sentence. Wade, 2016 IL App (3d) 150417, ¶ 13. However, under Castleberry, the

defect did not make the sentence void. Id. “So, what to do?” Id. The court’s answer was

straightforward: Nothing.

¶ 23 The court recognized that, before Castleberry, appellate courts had routinely remedied

trial courts’ failure to impose mandatory fines by either imposing the fines themselves or

remanding with directions for the trial courts to impose them. Id. However, after Castleberry,

neither remedy was a viable option, because either would require the appellate court to grant the

State relief by increasing the defendant’s sentence. Id. The State could still file a mandamus

action, although the parties there agreed that it made more sense “to vacate the fines and move

on to the next case.” Id.

¶ 24 We agree with Wade’s reasoning. Indeed, although the court found Castleberry

“instructive” on the issue of whether the court could remand the cause for the trial court to

impose fines that it had not assessed at sentencing (id. ¶ 12), we conclude that Castleberry was

controlling in Wade. Wade’s reasoning demonstrates as much. Because the mandatory fines

purportedly assessed by the circuit clerk were void from their inception and the trial court never

imposed them at all, the defendant’s sentence was illegally low, for the same reason as was the

defendant’s sentence in Castleberry. And because the jurisdiction of the appellate court in Wade

was invoked solely by the defendant’s appeal, and not by a State cross-appeal (a legal

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impossibility), the appellate court had no more authority to correct the illegality than did the

appellate court in Castleberry.

¶ 25 For these reasons, we conclude, Wade was squarely controlled by Castleberry. And, for

the same reasons, so is this case. Legally speaking, the fines that the trial court did not impose

do not exist. At present, defendant’s sentence consists of his prison term, his term of mandatory

supervised release, and the fines that the trial court duly imposed. We cannot remedy the trial

court’s failure to impose the mandatory fines at issue any more than the appellate court in

Castleberry could have imposed the mandatory second add-on or the appellate court in Wade

could have imposed the various fines that were never assessed in the trial court.

¶ 26 We recognize, as did the court in Wade, that, even after Castleberry, several appellate

court opinions have continued the pre-Castleberry practice of remanding with directions for the

trial courts to impose mandatory fines that they did not originally impose (although the circuit

clerks had purported to do so). Id. ¶ 16. However, to the extent that these opinions cannot be

distinguished, we do not follow them.

¶ 27 We start with two post-Castleberry opinions with which we respectfully disagree. In

Ford, the defendant, who was convicted of reckless conduct and sentenced to probation, argued

on appeal that the circuit clerk had improperly assessed certain mandatory fines against him.

The State agreed. The appellate court held that the purported fines were void and it vacated

them. Ford, 2016 IL App (3d) 130650, ¶¶ 32-33. The court also remanded the cause with

directions for the trial court to impose the fines. Id. ¶¶ 32, 35. Not only did the court decline to

discuss whether Castleberry allowed this remedy, but it did not mention Castleberry at all.

Instead, the court relied on a pre-Castleberry appellate opinion that granted such relief. Id. ¶ 33;

see People v. Williams, 2013 IL App (4th) 120313, ¶ 18.

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¶ 28 In Warren, decided after Ford (but before Wade), the court purported to address the

application of Castleberry to the issue presented here. It agreed with the defendant that the

circuit clerk could not impose certain mandatory fines (too numerous to specify here) and that

the fines that the clerk had purported to assess were void. Further, it observed that Castleberry

prevented it from “order[ing] the trial court to impose additional penalties on [the] defendant.”

Warren, 2016 IL App (4th) 120721-B, ¶¶ 131, 144. However, it nonetheless ordered the trial

court to “reimpose” the fines in the amounts that the clerk had purported to assess (id. ¶¶ 120,

123, 126, 131, 135, 139, 144) or, in accordance with the applicable statute, in a lesser amount

(id. ¶ 148). It saw itself constrained by Castleberry only to the extent that the applicable statutes

might have called for fines in greater amounts; only these were the “additional penalties” that

Castleberry precluded. Id. ¶¶ 131, 144.

¶ 29 What the Warren court failed to recognize was that, because the fines that the clerk had

purported to impose were void from the outset, the trial court’s imposition of them, in any

amount, was the “impos[ition] of additional penalties on [the] defendant.” Id. ¶¶ 131, 144.

Although the appellate court properly vacated the (legally nonexistent) fines that the clerk had

purported to assess, this action did no more than declare (and thus effectuate in practice) the

existing state of affairs: the defendant was not subject to these fines. By ordering the trial court

to impose these fines—and, in the contemplation of the law, to subject the defendant to them for

the first time—the appellate court in essence created a State cross-appeal and awarded the State

relief thereon. This is what Castleberry had just said an appellate court may not do. And it is

what Wade later held, correctly, that an appellate court may not do. See Wade, 2016 IL App (3d)

150417, ¶ 16. 2

2
Wade did not actually mention Warren, instead citing, as examples of opinions it would

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¶ 30 As did the supreme court in Castleberry and the Third District in Wade, we note that the

State is not without recourse against the trial court’s failure to impose mandatory fines against a

criminal defendant: the State may petition for mandamus. Further, we do not rule out the

possibility that the State may obtain relief through some other collateral proceeding, even one

that the defendant has brought. That occurred in Hible, in an opinion that the Wade court found

inconsistent with Castleberry and thus disapproved. Id. Hible is the third post-Castleberry

opinion that we address.

¶ 31 In Hible, the defendant pleaded guilty to aggravated battery and was sentenced to two

years in prison. The trial court imposed no fines, but the circuit clerk assessed four fines: $50

under section 1101(c)(1) of the Counties Code (55 ILCS 5/5-1101(c)(1) (West 2004)); $2 for the

“ ‘Anti-Crime Fund’ ” (730 ILCS 5/5-6-3(b)(13) (West 2004)); $4 for “ ‘Youth Diversion’ ” (55

ILCS 5/5-1101(e) (West 2004)); and $20 for the Violent Crime Victims Assistance Fund (725

ILCS 240/10 (West 2004)). Hible, 2016 IL App (4th) 131096, ¶ 3.

¶ 32 Four years later, the defendant filed a petition under section 2-1401 of the Code of Civil

Procedure (735 ILCS 5/2-1401 (West 2010)). The trial court dismissed the petition. Hible, 2016

IL App (4th) 131096, ¶¶ 1-5. On appeal, the defendant argued in part that the circuit clerk had

improperly imposed (or purported to impose) the four mandatory statutory fines. The State

conceded the claim. Id. ¶ 7. The appellate court agreed.

¶ 33 The court held first (as would Wade) that Castleberry did not change the rule that fines

imposed by the circuit clerk are void, because the imposition of fines is part of sentencing and

therefore within the sole jurisdiction of the judiciary. Id. ¶¶ 11-12. Thus, because the purported

not follow, only Ford and Hible. Wade, 2016 IL App (3d) 150417, ¶ 16. There can be no

question, however, that Warren is another such opinion that Wade disapproved.

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fines were void, the defendant was entitled to relief against them even though he filed his

petition outside the general two-year limit for a section 2-1401 petition (see 735 ILCS 5/2-

1401(c), (f) (West 2010)). Hible, 2016 IL App (4th) 131096, ¶ 13.

¶ 34 The court’s choice of remedies was more complex. The court held that the Anti-Crime-

Fund fine could not be imposed even by the trial court, because it applied only to defendants who

received probation (see 730 ILCS 5/5-6-3(b)(13) (West 2004)). Therefore, the court vacated it

outright. Hible, 2016 IL App (4th) 131096, ¶ 18. However, the court remanded with directions

for the trial court to “reimpose” or “recalculate[ ]” the other three fines. Id., ¶¶ 16, 20, 22. The

court did not discuss whether Castleberry allowed this relief. The court did, however, rely on

Castleberry in response to the State’s request to order the trial court on remand to impose the

mandatory lump-sum surcharge (730 ILCS 5/5-9-1(c) (West 2004)). The court’s rationale was

that, because “[t]he lump-sum surcharge was never imposed originally,” it could not order the

imposition of the fine, as, under Castleberry, “the State’s basis for appeal in criminal cases is

now limited to those enumerated in Illinois Supreme Court Rule 604(a).” Hible, 2016 IL App

(4th) 131096, ¶ 24. 3

3
Hible’s treatment of the lump-sum surcharge is fraught with obvious difficulties. In

part these are the same as those in the Warren court’s treatment of Castleberry’s prohibition

against the appellate court’s increasing the defendant’s punishment. In effect, the court treated

the legally nonexistent fines as void yet valid, holding that the trial court could “reimpose” them

on remand but could not “impose” the lump-sum surcharge, because this fine had not been

“impose[d]” at the trial-court level. Thus, although the circuit clerk had never had the power to

impose any fines, the clerk’s wholly ineffectual attempt to impose three fines enabled the trial

court to impose them on remand; yet the clerk’s decision not to assess the lump-sum surcharge

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¶ 35 Although Wade considered Hible to be flatly inconsistent with Castleberry, that

conclusion is not necessarily correct. The Hible court relied on Rule 604(a), but it apparently

overlooked that it was hearing a direct appeal not in a criminal prosecution governed by Rule

604(a) but in a civil proceeding brought under a provision of the Code of Civil Procedure and

governed by the rules for appeal in civil cases. That is, Hible was not governed by the supreme

court rules on which Castleberry relied to hold that the appellate court in a direct appeal by a

criminal defendant may not grant the State’s request to impose penalties that the trial court did

not impose.

¶ 36 Because there is no inherent bar to the State filing a cross-appeal from a judgment on a

section 2-1401 petition, we cannot say definitively that the State would be unable to request

relief in that context (or to do so in the trial court via a cross-petition or in response to the

defendant’s petition). We do note, however, that the State did not file any cross-appeal in Hible,

making it questionable whether the appellate court had the authority to order the trial court to

impose the three fines to which the defendant had not previously been subject.

¶ 37 In any event, the conundrums raised by Hible’s distinctive procedural posture must wait

for another day for their ultimate resolution. Suffice it to say that we agree with Wade and

defendant that the spurious fines are void and that, on this appeal, we lack the authority to

impose them or order the trial court to do so. Should the State wish to hold the trial court to its

statutory obligation, it must find some other way.

¶ 38 We vacate all of the fines assessed by the circuit clerk but not by the trial court. In all

other respects, we affirm defendant’s conviction and sentence. As defendant has received all the

barred the trial court from imposing this fine on remand. We reject this reasoning.

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relief that he requested on appeal, we deny the State’s request that defendant be assessed the

costs for this appeal.

¶ 39 Affirmed in part and vacated in part.

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